From: Human Rights Standards for the Treatment of trafficked Persons, 1999, GAATW. page 13) Also accessible at web-site http://www.inet.co.th/org/gaatw/ )

Access to Justice

9. Take all necessary steps to ensure that all trafficked persons, irrespective of their immigration status or the legality or illegality of the work they perform (e.g., begging or sex work) have the right to press criminal charges against traffickers and others who have exploited or abused them. In the case of a trafficker who has diplomatic immunity, states shall make a good faith effort to obtain a waiver of immunity or, alternatively, shall expel the diplomat. States should adopt a mechanism for promptly informing trafficked persons of their rights to seek this and other forms of redress. 19>

10. Provide trafficked persons with a competent, qualified translator and legal representation before and during all criminal, civil, administrative and other proceedings in which the trafficked person is a witness, complainant, defendant or other party, and provide free transcripts or copies of all documents and records related to any and such proceedings, in their own language. Trafficked persons and defendants shall have different translators and legal representatives. If the trafficked person cannot afford to pay, legal representation and translation shall be provided without cost.20

11. Recognize that trafficking is often only one of the crimes committed against the trafficked person. 21> In addition to charging defendants with the crime of trafficking, states should consider bringing charges, for example, of:

a. Rape, sexual and other forms of assault (including, without limitation, murder, forced pregnancies and abortions) and kidnapping.22
b. Torture, cruel, inhuman or degrading treatment. 23>
c. Slavery or slavery-like practices, involuntary servitude, forced or compulsory labour.24
d. Debt bondage.25>
e. Forced marriage, forced abortion, forced pregnancy. 26

12. Ensure that trial proceedings are not detrimental or prejudicial to the rights of the trafficked person and are consistent with the psychological and physical safety of trafficked persons and witnesses.27 At a minimum, states must ensure that:

a. The >burden of proof prior to and during any prosecution of a person alleged to be guilty of trafficking lies with the prosecution and not with the trafficked person.28

b. The prosecutor either calls at least one expert witness on the causes and consequences of trafficking and the effects of trafficking on victims or consults with such expert in preparation for the criminal proceedings. 29>

c. Methods of investigation, detection, gathering and interpretation of evidence minimise intrusion, do not degrade the victims or reflect gender-bias. For example, officials shall not use the personal history, the alleged 'character' or the current or previous occupation of the trafficked person against the trafficked person or cite them as a ground for disqualifying the trafficked person's complaint or for deciding not to prosecute the offenders.30

d. Defendants are not permitted to introduce as a defence evidence of the personal history, alleged 'character' or the current or previous occupation (e.g., as a prostitute or domestic worker) of the trafficked person.31

e. Trafficked persons subjected to, and witnesses of, sexual violence are permitted to present evidence in camera or by electronic or other special means, after taking into consideration all of the circumstances and hearing the views of the victim or witness. 32>

f. Trafficked persons are informed of their role and the scope, timing and progress of the proceedings and of the disposition of their cases.33

g. The views and concerns of trafficked persons are allowed to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.34

13. Ensure that, if a trafficked person is a defendant in a criminal case

a. She or he has the opportunity to raise a defence of duress or coercion and the same evidence is considered as a mitigating factor in sentencing, if convicted.35

b. In cases involving charges of having committed a crime against a trafficker(s), including homicide, she or he has an opportunity to plead self-defence and to present evidence of having been trafficked and the same evidence is considered as a mitigating factor in sentencing, if convicted.36

c. Trials involving migrant trafficked persons are conducted in accordance with these Standards,relevant provisions of Article 5 of the Vienna Convention on Consular Relations (VCCR) and the articles 16-19 of the ICPRWM. States providing assistance to their nationals under the VCCR shall act, at all times, in the best interests of, and consistent with the views of, the trafficked person.

Commentary: Action to combat trafficking must be targeted at the offenders and not at those who are victim of such practices. The victim too often is forced to stand trial instead of the offender, thus further undermining the victim's belief in the ability of the legal system to bring about justice. Anti-trafficking legislation, which is often more concerned with illegal migration and criminal prosecutions than with the rights and needs of victims, is often used as an instrument of repression by governments to punish, criminalise and marginalise trafficked persons and to deny trafficked persons their basic human rights.

When laws target typically 'female' occupations, they are usually overly protective and prevent women from making the same type of decisions that adult men are able to make. For example, anti-trafficking laws might prohibit women from migrating for work thereby throwing women into the hands of traffickers. Additionally, many women are deterred from reporting due to discriminatory treatment of migrant women, especially women working in the sex industry. Police and prosecutors have exhibited a tendency in many parts of the world to undermine the credibility of female victims of trafficking and to categorize women as 'fallen' or 'without virtue', and thereby as not deserving of respect for their human rights.

Therefore, measures are needed to encourage and assist trafficked persons to report to the authorities and to act as a witness and to ensure 'fair treatment' by the criminal justice system and the safety and integrity of trafficked persons.

Access to private action and reparations

14. Take all necessary steps to ensure that all trafficked persons, irrespective of their immigration status or the legality or illegality of the work they perform (e.g., begging or sex work), have the right to bring a civil or other action against traffickers and others (including public officials and, when possible, persons having diplomatic immunity) who may have exploited or abused them, and have access to other legally enforceable forms of compensation (including lost wages), restitution and recovery for economic, physical and psychological damages. 37 Non-wage compensation, restitution and recovery shall be proportionate to the gravity of the violations and resulting harm.

15. Confiscate all assets of convicted traffickers and disburse such assets in payment of all court orders for compensation (such as unpaid wages), restitution and recovery due to the trafficked person.

16. Ensure that the relevant authorities, upon the request of the trafficked person and/or her or his legal representative, make available to the requesting party(ies) all documents and other information in their possession or obtainable by them that is relevant to the determination of the trafficked person's claim for monetary damages, including compensation, restitution and recovery.

Commentary: Trafficking in persons has major economic, emotional, psychological and physical consequences for the victims, their families and friends, which consequences are not accommodated by criminal investigation and prosecution of the offender. Adequate assistance and support as well as financial compensation serves not only to remove or redress the consequences, but also acts as a deterrent to traffickers by strengthening the position of trafficked persons.

Whereas, the victims of human rights violations have largely remained outside the spectrum of national and international concern; however, in recent years, the need for attention to the rights of victims, in particular the right to reparation, has increasingly been recognised as an essential requirement of justice. This trend is exemplified by the instruments cited in footnote 34.

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19 UDHR 8; ICCPR 2.3; ICPRMW 16.2; Declaration of Basic Principles 4-5.
20ICCPR 14.3; ICPRMW 18.3.
21 Model Strategies 8a, 9(a)(i).
22UDHR 3; ICCPR 6; CEDAW 2(f), 6 and Recommendation 19 on Violence Against Women).
23UDHR 5, ICCPR 7; CAT, all, CRC 37(a); ICPRMW 10.
24UDHR 4; ICCPR 8; SC, all; SCAS, all; ILO Nos. 29 and 105, all; CRC 32; ICPRMW 11.
25SCAS 1(a).
26UDHR 16.1-.2; ICESCR 10.1; ICCPR 23; CEDAW 16; SCAS 1(c).
27Model Strategies 10(d).
28UDHR 11.1; ICCPR 14.2; ICPRMW 18.2. "The primary responsibility for initiating prosecutions lies with prosecution authorities and does not rest with women subjected to violence," Model Strategies 7(b).
29ICC 42.9.
30ICC 21.3, 54.1(b); Model Strategies 7(d) and 8(b).
31ICC 21.3, 68.1; Model Strategies 7(d).
32ICC 68.2; Model Strategies 7(c).
33Declaration of Basic Principles 6(a).
34Declaration of Basic Principles 6(b).
35See ICCPR 14.3(d).
36See ICCPR 14.3(d).